State v. Shields

Citation272 Mo. 342,198 S.W. 1105
Decision Date01 December 1917
Docket NumberNo. 20395.,20395.
PartiesSTATE ex rel. MAJOR v. SHIELDS, Circuit Judge, et al.
CourtUnited States State Supreme Court of Missouri

Charles G. Revelle, of Jefferson City, for relator. Spencer & Donnell, of St. Louis, for respondents.

WALKER, P. J.

This is a proceeding by prohibition to prevent a circuit judge from hearing and determining a suit, the purpose of which is to mulct a former Governor of this state in damages for his failure and refusal to issue a commission to one elected to the office of clerk of the circuit court of the city of St. Louis.

Upon the filing of the suit for damages the defendant therein, who is the relator here, interposed a demurrer based on the ground that the petition did not state a cause of action. This was overruled, whereupon relator petitioned this court for a writ of prohibition, alleging as a moving reason therefor, as in his demurrer below, that the petition did not state a cause of action, and hence no jurisdiction existed in the trial court to hear and determine the case. Upon the issuance of a preliminary order the respondent made return thereto, setting up much extraneous and wholly irrelevant matter. The material parts of this return to which we will alone direct attention are that the plaintiff in the damage suit had at the preceding election in November, 1916, been elected to fill out an unexpired term as clerk of the circuit court of the city of St. Louis, and, as alleged in his petition, being otherwise qualified, had—stating his acts in detail—complied with the law entitling him to enter upon the discharge of the duties of said office upon the issuance to him of a commission by the Governor of the state; that the latter had as Governor refused to issue said commission, and plaintiff had thereupon instituted in the circuit court of the city of St. Louis in November, 1916, a proceeding by quo warranto against his predecessor, the then incumbent of said office as clerk of the circuit court, who had been appointed as such by the Governor until the general election in November, 1916; and that the said proceeding had been finally determined in favor of the plaintiff, and that he had again applied to the Governor for the issuance of a commission which had been refused until a short time before January 1, 1917, when said commission had been issued and he had entered upon the discharge of the duties of the office; that he was damaged by reason of the refusal of the Governor to issue said commission which would have entitled him to take charge of the office immediately upon his election in November, 1916, instead of his right thereto being deferred until January, 1917. These facts, if not explicitly pleaded, are to be gleaned from the record before us as the reasons urged by the respondent why the peremptory writ should not issue.

Relator's motion to strike out parts of this return we have, in effect, sustained by epitomizing only such portions of same as constitute a proper pleading in a case of this character. Thus freed of matters foreign to the issue, there is presented the question of jurisdiction, or, concretely stated, has a court authority to entertain and determine a proceeding which has for its purpose the assessment of damages against a Governor for failing or refusing to issue a commission to an individual elected to an office?

A determination of this question involves a discussion of the triune nature of our government; and as a consequence the relation of each of the departments, thus created, to the others. The origin of this form of government, diverting as a review of same might prove, is pertinent here only so far as same is necessary to an elucidation of the matter at issue. It will suffice to say that the germinal idea of a government of three coordinate branches is first found recorded in Aristotle's Politics, where it said that "in every polity there are three departments: First, the assembly; second, the officers, including their powers and appointment; and third, the judging or judicial department." The wisdom of this classification and its appropriate application in the framing of the laws of a free government has been illustrated...

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